Complainant

Respondent

Parties

Lindsay  Dicken

Velocity EHS Ireland

Representatives

  Self-Represented

James Cleary IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00071085-001

14/04/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00071085-003

14/04/2025

The Complainant worked as a customer support engineer with the Respondent from 15 March 2021 until his redundancy in February 2025. He was on a gross salary of €45240 per annum. He initially joined as an intern before progressing into permanent employment within the Customer Support function. He subsequently held the position of Customer Support Engineer. During his employment he raised a number of grievances internally. In late 2024 the Respondent undertook a global restructuring exercise, citing a downturn in sales and the need to reduce staffing levels across multiple jurisdictions. As part of that process, 57 positions were eliminated worldwide, including eight in the Irish operation. The Complainant was one of those selected for redundancy and his employment was terminated in early 2025.

The Complainant has two complaints:

1.      A claim of unfair dismissal, based on alleged unfair selection for redundancy under the Unfair Dismissals Acts 1977–2015.

2.      A claim of equal pay, where the Complainant contends that he was paid less than colleagues on the race ground, contrary to the Employment Equality Acts 1998–2015. The Complainant is an Irish citizen of black South African heritage.

The Complainant asserts that the redundancy selection matrix was flawed and that his dismissal was tainted by an earlier disciplinary sanction which, he maintains, arose from his having raised complaints rather than any misconduct. He also contends that his remuneration was lower than appropriate comparators of different racial backgrounds, despite his undertaking of responsibilities he describes as managerial in nature.

The Respondent’s position is that the redundancy programme was genuine, necessary and fairly implemented across all departments, using objective criteria and external advice. It maintains that the Complainant scored lowest in his pool due to a final written warning on his record. It further submits that the Complainant’s pay and career progression were consistent with his experience, qualifications and market benchmarking, and that race was never a factor in any decision. The Respondent notes that the Complainant was offered promotion to Senior Support Engineer with a significant salary increase, which he declined.

The Respondent called four witnesses.

Ms Breda Martin, HR Manager, gave evidence that the redundancy programme was global and used a selection matrix based on performance, skills and disciplinary record. The Complainant’s final written warning reduced his score and led to his selection. She said the disciplinary framework comprised four levels, culminating in a final written warning, and that the process was consistent across the organisation. She confirmed the Complainant attended consultation and was afforded an appeal. She accepted he was shown only his own matrix, not comparators’, citing confidentiality.

In cross-examination, Ms Martin was challenged on the disciplinary process, with it being put to her that the Complainant was escalated directly to a final warning without intermediate stages. She could not clearly explain how the sanction aligned with the four levels. She was also pressed on the lack of transparency in the scoring matrix and on examples of colleagues receiving informal coaching not reflected in scoring. She maintained, however, that the process was fair.

Ms Satia Stevens, Vice President for Customer Support, confirmed she ratified the Complainant’s salary adjustment when he joined the support team. She stated managerial meetings were limited to managers and denied the Complainant had formal managerial responsibilities. She emphasised the Respondent’s diversity and inclusion initiatives.

In cross-examination, Ms Stevens maintained she had no knowledge of the Complainant attending management meetings, though she accepted he might have joined operational huddles or product escalations in a non-managerial capacity. She confirmed that she was not aware of diversity complaints in the EU support function prior to 2024. She accepted that the disciplinary sanction was processed through HR rather than by her directly. She acknowledged that the Complainant may have assisted in training but maintained this did not amount to managerial work.

Mr Gerry Russell, Director of European Operations  gave evidence that he had issued a  “cease-and-desist” instruction to the Complainant after the latter contacted senior executives about promotions and internal processes. He explained that the direction was intended to ensure that established grievance and promotion procedures were followed, and that the disciplinary process which followed was handled fairly through HR, ultimately resulting in a final written warning. He denied that the sanction was influenced by the Complainant’s race or prior complaints.

Under cross-examination, Mr Russell accepted that he had previously advised the Complainant on raising concerns about performance but insisted this did not amount to permission to bypass line management. He was challenged that the cease-and-desist was disproportionate and effectively precipitated the Complainant’s dismissal; he maintained that the instruction was consistent with procedure and was necessary to preserve proper lines of communication.

Mr Shaun Wilson, Senior Manager of Customer Support, stated that the Complainant entered with no prior technology experience and required training. He said pay differentials reflected qualifications and experience. Mr M, the comparator in the equal pay complaint,  had seven years of prior technical work, team-lead experience at Apple, programming skills, and fluency in French, justifying a higher salary. Mr J, another comparator, was in partnerships, not support, and not a valid comparator. He denied the Complainant ever attended management meetings. He stated he had lobbied for a salary adjustment for the Complainant, which he considered fair, and denied victimisation. He confirmed a complaint against him, the witness, was investigated and not upheld. He maintained the Complainant’s redundancy score was reduced due to his final written warning.

In cross-examination, Mr Wilson accepted that the Complainant trained Mr M and handled escalations in EU hours, though he framed this as limited product support. He could not confirm who created EU processes and manuals. He acknowledged the Complainant’s good performance but criticised him for going above his line in lobbying for a managerial role. He conceded that the Complainant may have attended operational huddles or escalation calls but not management meetings.

Legal Argument:

On the redundancy claim, the Respondent submitted that the dismissal was effected as part of a genuine global redundancy programme, impacting multiple departments across the business. It argued that the Complainant’s position was fairly identified for redundancy by way of a selection matrix which objectively measured performance, skills and disciplinary record. The Respondent emphasised that the Complainant’s final written warning was properly issued following a breach of a direct management instruction, and that it was legitimate for this to affect his redundancy score. The Respondent relied on the principle established in Brennan v Irish Pride Bakeries [2000] ELR 282 that a genuine redundancy is a defence to an unfair dismissal claim, and on JVC Europe Ltd v Panisi [2011] ELR 310 (Labour Court), where it was held that an employer is entitled to design its own selection criteria provided they are applied in a fair and consistent manner. It was argued that the Complainant had been consulted and afforded an appeal, satisfying the requirements of fair procedure.

On the equal pay claim, the Respondent argued that the Complainant failed to establish a prima facie case under section 19 of the Employment Equality Acts 1998–2015. It contended that neither of the named comparators was engaged in “like work” with the Complainant. Mr J worked in the partnerships department and never in support, while Mr M, though in support, had materially greater qualifications, experience, and skills, including prior team-lead experience at Apple, programming expertise, and fluency in French, which were required for business needs. The Respondent cited Gibney v Minister for Defence [2008] ELR 66 for the proposition that “like work” requires work that is the same or broadly similar in nature, and Mitchell v Southern Health Board [2001] ELR 201, which makes clear that the burden of proof lies on the complainant to establish facts from which discrimination may be inferred. It argued that the Complainant relied on assertions about promotions and responsibilities, but produced no primary evidence that race was a factor in setting pay.

In conclusion, the Respondent submitted that the dismissal was a fair redundancy arising from a global programme, and that the equal pay claim must fail because the comparators were not in like work and no evidence of race-based pay disparity was shown.

The Complainant gave evidence that he began as an intern and was later confirmed to a permanent support role. He stated that, for a period, he was the sole EU-based support engineer. In that role he trained new hires, including comparator Mr M, prepared manuals and processes for EU support, and handled escalations during EU hours. He also attended root-cause analysis meetings with managers, which he regarded as managerial functions. He contended that his contributions were undervalued compared with white colleagues who were promoted or paid more.

The Complainant asserted that his selection for redundancy was caused by a final written warning issued after he contacted senior leadership about promotions and diversity. He argued this warning contradicted the Respondent’s “open-door” policy and was unfairly used against him in the redundancy matrix. He maintained that while redundancies occurred globally, the process was used as a vehicle to remove him specifically.

Under cross-examination, he accepted that he had been issued with a cease-and-desist instruction and that he did not appeal the resulting final written warning. He acknowledged that Mr J worked in a different department but insisted that in earlier years there had been overlap in functions. He accepted Mr M’s superior prior qualifications (Apple, programming, languages) but maintained that within the Respondent he nonetheless trained him and carried heavier responsibility. He confirmed that he had refused a 25.5% salary increase because it was not a managerial post that he desired – it was technical in nature, and he desired a peoples management position to which he was more suited

On the question of mitigation, the Complainant accepted that he has been medically certified as unfit for work since his dismissal and has been in receipt of illness benefit of €244 per week. He stated that he undertook a short period of employment, approximately four weeks, as an IT manager with a restaurant, after which he resumed receipt of illness benefit. He acknowledged that during that period he earned more on a weekly basis than he had with the Respondent and therefore suffered no financial loss for that time. He produced evidence of applications for other positions, although these had been unsuccessful.

Complainant Argument:

 On the unfair dismissal claim, the Complainant submitted that while the Respondent undertook a global redundancy exercise, his own selection was unfair and procedurally defective. He argued that the decisive factor in his scoring was a final written warning which arose after he raised legitimate concerns about promotions and diversity with senior executives, in line with the Respondent’s “open-door” policy. He contended that this sanction was disproportionate, improperly escalated directly to a final warning without intermediate steps, and thereafter unfairly used against him in the matrix. He further argued that the matrix itself was not clear to him, as he was shown only his own score and was not provided with comparators’ scores or clear information on weightings. He submitted that, in circumstances where his contributions to EU support (training, escalations, process design) were not reflected in the scoring and given contradictions in HR evidence as to how the sanction was applied, his dismissal was unfair.

On the equal pay claim, the Complainant argued that he performed work of equal value to comparator Mr M, within the meaning of section 19 of the Employment Equality Acts 1998–2015. He relied on evidence that he had trained Mr M, handled escalations during EU hours when managers were offline, and attended root-cause analysis meetings alongside managers. He submitted that these responsibilities went beyond his job title and were equivalent to those of his named comparators. He argued that while the Respondent highlighted Mr M’s external qualifications and experience, the law requires an assessment of the work actually performed in practice, not merely the CV presented on recruitment.

In conclusion he submitted that his dismissal was unfair as he was selected on the basis of a flawed and discriminatory process, and that he was entitled to equal pay with his comparators as he performed work of equal value but was treated less favourably on the ground of race.

CA-00071085-003 Unfair Dismissal

The Applicable Law:

Section 7(2) of the Redundancy Payments Act 1967, as amended, provides in Section 7(2)(c):

The fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise.

Section 6(7) of the Unfair Dismissals Act refers to the reasonableness or otherwise of the conduct of an employer, where it provides:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if [the adjudication officer or the Labour Court], as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.  

It was common case that there was a valid international redundancy situation therefore the question now to be answered is whether the redundancy process was carried out fairly and transparently when it came to the Complainant.

First, the redundancy matrix itself was not transparent. The Complainant was provided only with his own scores and was not given access to the comparative scores of colleagues, even in redacted form.  Ms Martin confirmed this in her testimony, explaining it on confidentiality grounds. However, this left the Complainant unable to test the consistency of application across the pool or to challenge whether his contributions were being fairly recognised.

Second, the Complainant’s selection turned entirely on the presence of a final written warning, for which he was severely penalised on the matrix and, from what I find on the balance of probabilities, was the determinative factor in him being made redundant.  Ms Martin in her evidence said that there was a universal consistent approach to matrix formulation and assessment, but an inconsistency of approach was laid bare when the Respondent  produced an exhibited copy of a U.S. colleague’s matrix, that penalisation for misdemeanours were not factored in. 

Taken together, the evidence shows a redundancy selection process that lacked transparency, consistency, and fairness. The Complainant was penalised in a way that it seems  his peers were not, on the basis of a disciplinary sanction. This falls short of the standards of fair procedure identified by the Labour Court in Boucher v Irish Productivity Centre [1993] ELR 145 (criteria must be objective and fairly applied) and St Ledger v Frontline Distributors [1995] ELR 160 (transparency and consistency are essential).

Having heard all the evidence on this matter I am satisfied that though there was a valid redundancy situation, I conclude that the process was not carried out fairly nor transparently. I therefore find that the Respondent did not act reasonably in conducting the redundancy process and that, as a result, the Complainant was unfairly dismissed.  

Redress:

Section 7 of the Act, in its relevant parts, provides:

7. Redress for unfair dismissal:  

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

…. (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid as is just and equitable having regard to all the circumstances,

and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances pay and benefits in lieu of or in addition to pay.

In assessing redress, I accept as fact that the Complainant has been medically certified as unfit for work since his dismissal, and that during the period of such ill health he was unavailable for work. It is well established in unfair dismissal jurisprudence that a complainant who is certified sick after dismissal is not entitled to recover compensation for the period during which he or she was unavailable for work due to illness, on the basis that any loss during that period is attributable to the illness rather than the dismissal. Because the illness, not the dismissal, prevented him from working, that period of non-availability must be excluded from loss calculations. The Complainant was still receiving illness benefit at the date of the hearing with no indication given as to when he might be available to seek work.

I further note that the Complainant received a redundancy payment of €5,000. For completeness, I note that the Complainant received a statutory redundancy lump sum on termination, which satisfied his separate entitlement under the Redundancy Payments Acts. As redundancy payments are based on service and compensation for unfair dismissal is based on actual loss, they are distinct entitlements, and to deduct the lump sum would unjustly penalise the Complainant twice. I therefore find that the redundancy lump sum does should not be taken into account when assessing compensation.

 I conclude that that the Complainant is entitled  to four weeks’ pay as compensation, in line with section  7(c)(ii) for the period after dismissal  That four-week sum is assessed as fair compensation for the unfair selection, subject to deduction of any income he earned in mitigation (which for the brief 4-week intervening post-dismissal employment is neutral, since he acknowledged he earned more than his Respondent salary for that period) and adjusted for the period during which he was medically unavailable.

 I direct the Respondent to pay the Complainant the sum of €3480, the equivalent of 4 weeks pay, which I could consider to be just and equitable haven taken all the circumstances of the case into account.  

CA-00071085-001 Equal Pay:

The Complainant submitted that Mr M, and to a lesser extent Mr J did like work to him, were on a higher rate of pay and that this difference in remuneration was attributable to his race  contrary to the Equal Pay provisions of the Employment Equality Acts 1998-2015 (the Acts).

Having considered all of the documentation and the testimony given at hearing, I am not satisfied that the Complainant has established a prima facie case of entitlement to equal pay. Section 19 of the Employment Equality Acts 1998–2015 requires the Complainant to demonstrate that he was engaged in “like work” with named comparators, or work of equal value, and that he was paid less for discriminatory reasons.

The evidence does not support that position. The Complainant nominated Mr M and Mr J as comparators. However, the testimony of Mr Wilson and Ms Martin established, and was not materially rebutted, that Mr J worked in a separate department (partnerships) and was not engaged in support functions at all. He therefore cannot be considered engaged in “like work.” As regards Mr M, while it was accepted that the Complainant trained him in certain product systems, the evidence clearly demonstrated that Mr M possessed materially greater prior technical experience, programming skills, and language proficiency, as well as team-lead experience at Apple, all of which were relevant to his role and justified a higher salary.

The Complainant’s case centred on the argument that, in practice, he undertook tasks of a managerial nature and carried heavier responsibilities than his title suggested. While I accept he carried out valuable training and escalation duties, these do not equate to formal managerial responsibilities or render his work “like work” to that of the comparators within the meaning of the Acts. More importantly, the Complainant did not provide primary evidence linking the pay differential to his race. His arguments were grounded in assertions about promotions and internal opportunities rather than direct evidence of race-based decision-making.

On balance, I am satisfied that the Respondent has demonstrated that the pay differentials in question were based on legitimate factors other than race, namely prior experience, specialist skills, and functional distinctions. Accordingly, I find that the Complainant has failed to establish that he was paid less for like work or work of equal value, or that the difference in pay was on a discriminatory ground.

The claim under the Equal Pay provisions of the Employment Equality Acts is therefore not well founded and I find that he was not discriminated against on the basis of race.

CA-00071085-003: for the reasons outlined above, I find that the Complainant was unfairly dismissed, and I direct the Respondent to pay him the compensatory sum of €3480.

CA-00071085-001: For the reasons outlined above, I find that the Complainant did not establish a prime facie case that he discriminated against by the Respondent in his complaint under the Equal Pay provisions of the Employment Equality Acts 1998-2015.

Unfair Dismissals act 1977, Unfair Selection for Redundancy, Race, Employment Equality Acts 1998-2015, Equal Pay.